Withdrawing from the ECHR: A ‘Political Disaster’

As seen recently, the UK has undertaken huge debates on whether being part of the European Convention on Human Rights (ECHR) proves to be an efficient and beneficial membership. In particular with the recent case of Abu Qatada, the Prime Minister, David Cameron, expresses his frustration with his presence in the UK. The prime issue is that he cannot be deported to his country of origin, Jordan, due to the high risk of torture he may face by the Jordanian authorities. Consequently, deportation will breach his human rights under European human rights law and ‘states cannot expel someone where there is a real risk that they will face a trial based on evidence obtained by torture’.

The Human Rights Act 1998

The Human Rights Act is an Act of Parliament which makes the European Convention on Human Rights part of all UK national laws. Section 6(1) states that ‘it is unlawful for a public authority to act in a way which is incompatible with a Convention right’. Since the incorporation of ECHR law into UK law, all public bodies – including courts and tribunals and private bodies implementing public law – are obligated to abide by the principles of the ECHR. The European Convention was drafted in 1950 and since 1966 people from the UK with claims that the government has failed to protect their human rights have been able to take cases to the European Court of Human Rights in Strasbourg. The 1998 Act makes the ECHR binding at national level, so people in the UK can complain in their local courts about a failure to uphold their Convention rights. Therefore, ECHR rights may be applied either as a matter of European human rights law, where they concern a measure within the competence of the European law, or under domestic law, following the procedures set out the in Human Rights Act.

In particular with the recent case of Abu Qatada, the Prime Minister, David Cameron, expresses his frustration with his presence in the UK.

The Human Rights Act in practice

Most rights are not absolute and can be limited where it is necessary to achieve a proportionate and legitimate aim. The courts and tribunals intend to reach:

[a] fair balance between the general interest of the community and requirements of protection for the individual’s human rights.[1]

Judges applying the Human Rights Act have to interpret the meaning of words used in the ECHR by taking into consideration the judgments already issued by the European Court of Human Rights.

The effects of the UK’s removal from the ECHR

Judge Dean Spielmann, who is the president of the European Court of Human Rights, stated that such an attitude from the UK may cause ‘real damage to the UK’s international reputation, because it undermines the whole system’. He also cautioned that removal from the ECHR ‘could undermine the UK’s credibility in promoting human rights around the world.’ In particular, the retraction from the ECHR may ultimately mean departing from the 47 member Council of Europe and question the eligibility of the UK’s place in the European Union. Judge Spielmann from Luxembourg, elaborated further on this concept and stated leaving the Council of Europe, which administers the Convention, would possibly also mean leaving the separate entity of the EU because no state has ever been a member of the EU without first joining the Council of Europe. In other words, he labelled this notion as a ‘political disaster’.

He went further to reinforce his views in illustrating that:

‘any Member State who would leave the Council of Europe, who would denounce the Convention, would lose its credibility when it comes to promoting human rights also in different parts of the world.’

On the other hand, Conservative MP Dominic Raab expresses that:

the fundamental problem is a constitutional one. The common law has always been creative, but it’s always been subject to being overridden by a statute and of other legislation. There is no democratic oversight or accountability that creates that check with the Strasbourg court.

Lord High Chancellor and Secretary of State for Justice, Chris Grayling, reported that if David Cameron is receives a majority in 2015, his Conservative Government will eliminate Labour’s Human Rights Act and start all over again, he stated:

I cannot conceive of a situation where we could put forward a serious reform without scrapping Labour’s Human Rights Act and starting again.

In relation to foreign criminals being denied deportation due to the likelihood of infringement on their human rights he said:

…removal from the ECHR ‘could undermine the UK’s credibility in promoting human rights around the world.’

We cannot go on with a situation where people who are a threat to our national security, or who come to Britain and commit serious crimes, are able to cite their human rights when they are clearly wholly unconcerned for the human rights of others. We need a dramatically curtailed role for the European Court of Human Rights in the UK.

The Conservatives may intend to repeal the Human Rights Act and replace it with a similar ‘Bill of Rights’ although with a ‘British twist’. The idea, as stated by the Secretary of State Home Department, Theresa May, is that the final court of appeal would be the UK Supreme Court, not the European Court of Human Rights in Strasbourg.

Will leaving the ECHR allow foreign criminals to be deported?

Despite the Conservative’s hopes behind their intention to remove the UK from the ECHR, withdrawal from the Strasbourg court is unlikely to make it easier to send foreign criminals back to their country of origin. It may be argued that there are three pertinent points when considering this question:

1. Only a portion of the UK’s human rights cases are sent to Strasbourg for judgment per year, with the percentage of foreign criminals from this portion being very small. These cases are frequently decided in the courts and tribunals of the UK. As mentioned above, this is due to the power vested by the Human Rights Act, which provides our domestic courts with the authority to enforce the Convention. Thus, this demonstrates that UK judges are largely deciding UK human rights issues, with little involvement from Strasbourg anyways. So whether we withdraw from the ECHR or not, the routine of the UK domestic courts applying human rights law and possibly using decisions from the European Courts as guidance is unlikely to come to a halt.[2]

Will withdrawing from the ECHR solve the problems of the Conservative party? The answer seems to be no.

2. Is the ECHR the only international legislation which governs the rights of foreign criminals? Of course not. There are a variety of sources which foreign criminals can fall back on for human rights protection. The UN Convention Relating to the Status of Refugees 1951 (the Refugee Convention) equally provides states with an efficient system of refugee protection, whether they be criminals or not. Furthermore, the EU Refugee Qualification Directive 2000/83 was introduced which sets the minimum rights persons qualifying for international protection should receive. This may be in the form of humanitarian protection or subsidiary protection. The ECHR is only one amongst many pieces of legislation which prohibit the UK from sending back foreign criminals who may face a ‘real risk of suffering serious harm’ upon return.[3] These stated sources will be applied. Therefore, how will withdrawing from Strasbourg really make a difference? In fact, little or nothing will ‘untangle the web’.

3. In theory, the UK should not want to ‘untangle’ the web. The ECHR is almost like a ‘safety net’ for the current judicial system. With its removal, the UK Supreme Court will then be the highest appellate court. This freedom may lead to judges not being as charitable to the government when interpreting basic rights.[4]

Conclusion

Will withdrawing from the ECHR solve the problems of the Conservative party? The answer seems to be no. Not only will the UK be sending a message to the other states that it has lost confidence in the ECHR, which must be balanced against any arguments they use to justify their withdrawal, but this would also have an unfair impact on UK individuals, leaving them at a disadvantage if their rights are violated. In terms of withdrawing from Strasbourg with the intention of easily sending foreign criminals back home, this is highly uncertain, especially if there is a high risk or torture or ill-treatment.

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